AI Structured Summary
Not yet generated for this judgment
Judgment
This Civil second appeal under section 100 of CPC is directed
against the judgment and decree dated 29.7.2017 passed by the
learned Additional Sessions Judge No. 9, Jaipur Metropolitan,
Jaipur, in Civil Appeal No. 7/2012 filed against the judgment and
decree dated 03.02.2012 passed by the learned Additional Civil
Judge (J.D.) Jaipur Metropolitan in a civil suit No. 616/1994.
The brief facts giving rise to this appeal are that the
plaintiffs-appellants with Late Captain C.R. Dudi s/o Shri Nandram
Dudi filed a civil suit No. 616 of 1994 for perpetual injunction in
the court of Additional Civil Judge (J.D.) Jaipur West, Jaipur
Metropolitan pleading therein that plaintiffs- appellants are
residents of Kailash Nagar Colony, Jhotwara and representing
Kailash Nagar, Kumawat Colony and Prem Nagar Colony. The
aforesaid colonies are situated adjacent to military area Jhotwara.
In the aforesaid colonies the ex-army personnel are residing with
their families since long. It has been pleaded that there is a road
situated on Jhotwara Road opposite to Assam maida factory
connecting to the aforementioned residential Colony which is used
for the residents of the aforesaid colonies as public way. The
respondents made attempt on 2.12.1994 to obstruct the aforesaid
road. The plaintiffs prayed for restraining respondents from
making any kind of obstruction in the aforesaid road.
The stand of the respondents was is that the alleged road is
not a public road, the said road has never been used by the
residents of the aforesaid private Colonies, the road belongs to the
respondents and has been constructed and is being maintained by
the respondents for sole use of Army establishment and is
occupied by them.
On the basis of the pleadings of the parties the learned trial
court framed as many as 8 issues:-
"VERNACULAR MATTER OMITTED"
The plaintiffs-appellants examined 3 witnesses and exhibited
3 documents before the trial court and the defendants- respondents examined 1 witness. Having considered the testimony
of the witnesses and going through the documentary evidence,
the trial court decided issued No. 1 to 3 against the plaintiffs and
in favour of defendants and issues No. 4, 5 and 7 against the
defendants and in favour of plaintiffs. Accordingly, the suit was
dismissed.
Aggrieved by the judgment and decree of the trial court, the
plaintiffs filed an appeal before the learned District Judge, Jaipur
Metropolitan, Jaipur. Which was heard and decided by the learned
Additional District and Sessions Judge No. 9, Jaipur Metropolitan,
Jaipur. During the hearing of the first appeal, two more documents
namely orders dated 13.10.1998 and 20.12.2000 issued by the
Army Headquarters were taken on record on behalf of the
plaintiffs and exhibited as (Ex. 4) and (Ex. 5). The learned first
appellate court having heard the parties and going through the
record as well as assessing the effect of the said documents,
concluded that the learned trial court has not committed any error
in deciding issues Nos. 1 to 3 and 6 against the plaintiffs and
therefore judgment and decree of the trial court need no interference. Accordingly, the appellate court dismissed the appeal
of the appellants-plaintiffs.
Aggrieved by the judgments and decrees of both the courts
below the plaintiffs-appellants are before this court by way of this
second appeal.
It is argued by the learned counsel for the plaintiffs
appellants that during trial of the suit, the defendants have not
come with clean hands as despite applications having been filed by
the plaintiffs and despite the order dated 3" November, 2009
passed by the trial court to produce the letters dated 13th
October, 1998 and 20th December, 2000 on record, they have
suppressed these important documents issued by the Army
Headquarter with regard to the use of vehicles in cantonment
roads. After almost two years, they filed an affidavit stating that
despite best efforts those two letters were not available with
them. On 5th September, 2011, the learned trial court observed
that the affidavit filed by the defendants does not comply with the
directions contained in the order passed on November, 2009 and
fixed the case on 30.9.2011. The learned trial court despite its
earlier observations contained in order dated 5th September,
2011, on the basis of fresh affidavit filed by the defendants
rejected the application of the plaintiffs vide order dated 11th
November, 2011. In such a circumstance it is clear that the
defendants not only concealed the two important policy letters but
also did not comply with the directions of the trial court and filed
misleading affidavit. The learned trial court has miserably failed to consider this aspect of the case and thus, committed illegally
while dismissing the suit of the plaintiffs.
It is contended that in the appeal before the lower appellate
court also, the plaintiffs filed an application under Order 16 Rule 6
read with Section 151 for summoning the documents i.e. the two
policy letters but the learned lower appellate court without
considering the relevance of the documents to decide the
controversy between the parties, dismissed the application of the
plaintiffs vide order dated 29th November, 2014 observing that
the aforesaid documents had not been ordered to be produced in
the court as the same were not in the power and possession of the
defendants. Another application filed under Order 16 rule 6 CPC
filed by the plaintiffs for summoning the aforesaid two policy
letters from the power and possession of the Army Head quarter
also came to be dismissed on the ground that the aforesaid letters
were not summoned during trial. However, the plaintiffs were able
to obtain copies of the aforesaid letters which were produced by
them on record along with an application under Order 41 Rule 27
CPC and the same were taken on record vide order dated 13 th
January, 2017. The defendants admitted the documents and the
same were marked as (Ex. 4) and (Ex. 5) by the lower appellate
court, despite taking on record the aforesaid two documents, the
learned lower appellate court neither afford any opportunity to the
plaintiffs to cross examine the witness appeared for the
defendants nor the defendants qualify their admissions.
It is submitted that the learned first appellate court without
properly considering the facts and circumstances of the case and the material and evidence available on record dismissed the
appeal of the plaintiffs appellants only mentioning that regarding
the aforesaid two documents they did not find any mention in the
pleadings.
It is contended that learned trial court totally misconstrued
the documents (Ex. 1) and (Ex. 2). (Ex.1) is the revenue map
indicating the existence of routes even in 1931-32 which cross
both the railway lines, i.e. Jaipur-Sikar and Jaipur-Phulera which
are the only relevant routes in the present litigation. (Ex. 2)
indicates this route in larger detail where the point of inter
reference was specifically marked with a caption "entry blocked
here" Thereafter the road goes to Central School, across the
Jaipur-Sikar Railways Line and joins the Jhotwara Road at Assam
Maida Factory.
The learned trial court further grievously erred while holding
that when the road is in a special area for special people it cannot
be called a public road. It is submitted by the learned counsel for
the plaintiffs-appellants that the roads have to be either in the
cantonment area or in the municipal area. The Cantonment Act,
2006 as well as the Rajasthan Municipal Act, 2009 provide for
restrictions of movement on these roads. Therefore, there was no
scope or space for such bizarre extrapolation.
Regarding finding of the learned trial court on issue No. 2 it
is argued that this issue has been decided on the basis of findings
recorded on issue No. 1 i.e. on a hollow legal foundation with a
cascading effect on all other issues. While deciding issue No.5, the
learned trial court held that the suit had not been filed in a
representative capacity.
The appellate court framed three points for determination.
First was to the effect ''whether the road was a public road or a
private property of the defendants. Second point was to the effect
wherever the plaintiffs were entitled to easementary right even if
the disputed road was private property of the defendants and the
third point was to the effect whether the plaintiff was entitled to
the relief of injunction without having the road declared as a
public road.
The appellate court invented a new phrase to skirt the
judgment of the Karnataka High Court as upheld by the Hon''ble
Supreme Court and also the documents (Ex.4) and (Ex.5) which
specifically call the defendants snot to impose any restriction on
the movement of the traffic. The "South Area Command" area is a
term that does not find any mention in any of the pleadings of the
defendants. By coining a new phrase, which does not find place in
the pleadings of the defendants, the appellate court has practically
over ruled the documents i.e. (Ex.4) and (Ex.5) along with the
judgment of the Division Bench of Karnataka High Court Dr. Nitin
G.Khot Vs. Station Commandant, Belgaum AIR 1998 Kart. 300
upheld by the Supreme Court. The appellate court observe that
the decision of the Karnataka High Court and the documents
(Ex.4) and (Ex.5) are related to the road passing through the
Cantonment Areas but this area is under the jurisdiction of ''South
Area Command''. Therefore, on the basis of the judgment of the
Karnataka High Court and the documents the plaintiff cannot claim any right of way on the ground that the way passes through the
Cantonment Area.
The learned lower appellate court further failed to consider
that a military station/army area/''South Area Command'' is not
defined anywhere and there is no law on the subject of use of
road military stations, Therefore, in absence of any law the
plaintiff cannot be denied his fundamental right taking shelter of
the word ''military station'' or ''south area command''.
The counsel for the plaintiff-appellant also contended that
the appellate court grossly overlooked the age old legal dictum
that without express pleading, no amount of proof would suffice
and no finding can be given without such pleadings.
It is also submitted that point No.2 is related to the
easementary right which was not pleaded in the plaint.
Regarding point No.3, it is submitted that it is held by the
learned lower appellate court that without seeking declaration of
easementary right, no injunction could be claimed. This conclusion
is again based on imaginary facts when the rights of the easement
had not even been claimed rather the plaintiff pleaded it to be a
constitutional right. A constitutional right is not subservient to an
easementary right and the courts below have failed to address the
correct issue. It is submitted that these roads were in existence
since 1930-31 and were being used by the public since then.
The learned appellate court below also failed to consider the
relevance and importance of fundamental right of a citizen as
guaranteed under Article 19 (1) (d) of the Constitution of India which is subjected only to reasonable restrictions in accordance
with law. With regard to free movement of a citizen on the road
only reasonable restrictions can be imposed after making law.
There is no other way to put restrictions on this fundamental right.
In the instant case, no law has been shown under which the
restrictions in question have bee placed. There is neither any
formal order nor law placed on record by the defendants to restrict
entry at Kailash Nagar. Such restrictions can be placed either
under the Cantonment Act, 2006 or the Rajasthan Municipal Act,
2009 which is missing in this case.
The learned Counsel for the plaintiffs-appellants also
contended that in view of (Ex. 4) and (Ex. 5), which have been
taken on record by the learned lower appellate court after hearing
the learned counsel for the defendants, the defendants cannot
escape from the consequence of their unqualified admission on
these documents under Section 58 of the Indian Evidence Act and,
as such, there was no necessity for the plaintiff to prove anything
more. There is no explanation in the pleadings of the defendants
with regard to the distinction now sought to be created between
Military Station'' and Cantonment Area''.
The lower appellate court has not properly considered this
aspect of the case that after taking on record the additional
documents (Ex. 4) and (Ex. 5) the matter was required to be
remanded to the trial court to examine the relevancy and effect of
such documents and to give its adjudication on such documents
with a right to the party to appeal before the High Court.
It is contended that both the learned courts below have not
properly considered that statement with regard to the ex-
servicemen being permitted entry in the Army Area after showing
passes. Despite noticing the aforesaid evidence on which there is
no cross-examination, the courts below omitted to grant relief to
the ex-servicemen and now the defendants bent upon to block the
entry for all personnel including ex-servicemen permanently.
It is also argued that if the defendants claim that it was not
a public road then the defendants were required to lead proper
evidence in terms of Section 91 of the Indian Evidence Act and
produce best evidence which is in exclusive knowledge which is
lacking in the present case. To substantiate the claim of the
defendants that the property is their own property, the defendants
produced no document on record. The learned appellate court
below has not answered the aforesaid question and on erroneous
consideration decided the same against the plaintiffs.
On the otherhand, Mr. Rajdeepak Rastogi, learned Addl.
Solicitor General and Mr. Anand Sharma have contended that the
road in dispute is not a public road. They have also contended
both the learned courts below have concurrently recorded findings
of facts which require no interference by this Court while deciding
second appeal under Section 100 CPC. No question of law much
less any substantial question of law is involved in this second
appeal. Hence, the Same deserves to be dismissed.
Sofar as the argument of the learned counsel for the
plaintiffs-appellants regarding the fundamental right of the
plaintiffs-appellants as enshrined under Article 19 of the
Constitution of India is concerned, it is submitted that the interest
of nation exceeds all personal interests and personal interest
should make way to the national interest. The South Command
Area is a strategic defence area and in the very nature of things,
the matter of its location is a delicate and sensitive issue involving
the defence and security of the country which can not be
compromised with under any circumstances.
Heard the counsels for the parties and perused the record.
At the outset, I would like to mention here that I have
recited that arguments of learned counsel for the plaintiff-
appellant in extenso, which were submitted in writing also, to
show that though the second appeals are filed as a matter of
course and cases are argued on irrelevant and petty ground which
heavily tax upon the valuable public time of the court.
The original suit was filed on the ground that a public road
on which public of certain colonies had right of way has been
obstructed. The relief claimed was for permanent injunction. The
very relief required that plaintiffs would have adduced evidence to
prove that the road was a public road and they had a right of way
on the road. Instead of adducing such evidence they continue to
press upon the trial court and the defendants to produce two
letters of Army Headquarter which in fact were not of any help to
the plaintiffs. Those letters had subsequently been obtained by the
plaintiffs and produced before the learned first appellate court and
the court had taken them on record as (Ex. 4) and (Ex. 5) and has also considered there effect. Even then they recite the whole
episode before this court only to say that defendants did not go
before the courts below with clean hands. They nowhere say how
their case had been adversely affected by the defendants'' so
called unclean hands. The first appellate court had accepted and
taken the (Ex.4) and (Ex.5) on the record and there was no
question of their proof before the first appellate court, even then
the learned counsel for plaintiff ventured to take me through
section 58 of the Evidence Act. He also referred to section 91 of
the Evidence Act without telling how that section was relevant in
the context of the case at hand. It is an appeal against the
judgment and decree passed in a civil suit but he argued
fundamental rights as if it was a writ under article 226. Section
100 of CPC is very much clear which provides that second appeal
lays only on substantial question of law and such questions should
arise only from and within the scope of the proceedings of the
courts below. Therefore, the learned Counsels for the parties
should address the court only on such question remaining within
the scope of proceedings and their argument should strictly be
within the scope of the proceedings. This will save the time of both
the court and the parties.
Be that as it may. The whole controversy in the matter in
hand revolves around the question whether the disputed road is a
''public road'' and whether the plaintiffs have a right of way over
the said road. Both the courts below have found that the plaintiffs
have failed to prove that the disputed road is a public road and
they have a right of way over the road. Now, the question before
this court is whether the courts below have committed any error
of law in holding the question as aforesaid by wrong appreciation
of evidence or non-appreciation of evidence or by misapplication
of law or precedents.
Here I would like to remind myself that it is well settled
principle of civil law that a person who seeks to get relief from the
court should prove his case to the satisfaction of the court and in
absence of such proof, no amount of weakness in the pleadings of
the defence can afford him the relief sought for. In other words a
plaintiff cannot take advantage of the weaknesses in the pleadings
or the defence.
In the case at hand, the claim of the plaintiffs before the trial
courts was that that the disputed road is a public road ( vke jkLrk)
and they were entitled to use the road and therefore the
respondents must be restrained by a permanent injunction from
creating any obstruction on the road. The trial court has found
that the plaintiffs have failed to prove their claim. Therefore the
trial court decided the relevant issues against the plaintiffs.
The learned first appellate court while considering the record
as also the new evidence i.e. (Ex.4) and (Ex.5) produced before
the first appellate court, concluded that the conclusions of the trial
court need no interference.
At this stage, this court is required to look into the veracity
of the conclusions of the learned courts below in the light of the
evidence produced by the plaintiffs to prove their claim. The
plaintiffs have examined three witnesses namely (PW/1) Harpal Singh, (PW/2) Lajja Ram Dhakad and (PW/3) Subedar Major
Jaswant Singh. I have gone trough the testimony of all the three
witness. In his cross examination (PW/1) Shri Harpal Singh has
conceded that the disputed road is situated in the Military Area,
road belongs to Government of India, the road is maintained by
Military Engineers Service and it is true that the whole areas is
secured military area. (PW/2) accepts in his cross-examination
that the road shown in (Ex.1) (map of disputed road) was
constructed by Military, the whole Area Shown in (Ex.1) (within
which disputed road is situated) is within Military area, this areas
is surrounded by boundary wall, this area had been handed over
to the Military in 1968, he did not see any record which indicate
that the road was constructed by PWD. the road is used only by
retired officer to have access to the facilities like credit banks,
rations shops, etc. and the government offices situated in the
Army area and this road is not used to have access to the city but
is used only to have ingress into the Military Area. In his cross-
examination (PW/3) Jaswant Singh admitted that it is true that
the roads constructed in the Military Area are meant only for
Military, they have been given cards (pass) for their entry in the
Military Area, it is true that those who do not have pass are not
permitted to enter in to military area and there is a separate road
to connect the Kailash Nagar (private colony) to the city.
From the above statement of the witnesses, it is apparent
that disputed road is situated in the Military Area and entry
through this road is subject to having a pass from the Military.
Thus the road is not a free passage where public can have access
without permission.
Besides the above three witnesses, five documents, three
before the trial court and two more before the first appellate
court, have also been exhibited on behalf of the plaintiffs to prove
their claim. I have gone through these documents. (Ex.1) is a site
map prepared by the plaintiffs themselves to show the situation of
the road. First of all this document has admittedly been prepared
by the plaintiffs themselves and is not a part of any public record,
therefore it cannot have any evidentiary value whatsoever is
favour of the plaintiffs. Besides there is nothing in the map which
may throw light on the disputed issue. i.e. whether the road
shown tin the map is public road and whether the public have free
ingress on the road. However, the document has been produced
by the plaintiffs knowingly and voluntarily, therefore as far as
plaintiffs are concerned, the situation of the road may be accepted
true as shown in the map. Now, the perusal of the map shows that
the disputed road is situated completely within the Military area
and connects the offices and facilities situated in that area and
opens on public roads only at its ends. This clearly indicated that
the road is and internal road of the Military area and meant for
their own use to connect the offices and facilities situated on it
and to have ingress to public roads whenever occasion arises.
Thus the map shows contrary to what claimed by the plaintiffs.
(Ex.2) is survey map but it does not indicate the disputed
road.
(Ex.3) is a copy of a complaint purported to have been made
to the Prime Minister of India. It is mere a complaint and proves
nothing in favour of the plaintiffs.
(Ex.4) and (Ex.5) are the letters issued by the Army
Headquarter to different cantonments reminding them of various
court judgments including the judgment of the Karnataka High
Court in Nitin G. Khot vs. Station Commandent, Belgaum
(AIR 1998 Kar 300) and to direct that the ''public roads'' situated
in cantonments should not be obstructed. These documents do not
help the plaintiffs for the simple reasons that these documents
refers to ''public roads'' in ''cantonment areas''. To take support, if
any, of these documents, first disputed road has to be proved as a
''public road''. These documents say nothing about the nature of
the road or about the rights of the plaintiffs.
Thus, both the oral and documentary evidences produce by
the plaintiffs have miserably failed to prove that the disputed road
is a public road and the plaintiffs and general public have ingress
on it. Contrary to it, the testimony of the witnesses examined by
the plaintiffs and the documents (Ex.1) goes to so that the
disputed road is and internal road of the Army and is meant for
the offices and facilities situated in Army area and entry on the
road is restricted only to the pass holders meaning thereby the
entry of the public is based on leave and license that can be
withdrawn at any time.
As has been observed in the beginning, when plaintiffs have
failed to prove their claim, it is inconsequential to delve upon the issue whether the defendants have sufficient evidence in respect
of their ownership on the road.
The learned counsel has strenuously pressed the judgment
of the Karnataka High Court in Nitin G. Khot (supra) to
substantiate his argument that the public have right to use the
road situated in the Military area and Military cannot obstruct the
use of such roads. I think it is too generalization of the ratio of the
judgment. In Nitin G. Khot''s case, the military had closed as many
as 16 public roads passing through the Cantonment are of
Belgaum. There was a clear finding of the fact in that case that
the roads in question were ''public roads''. In this regard the
following paragraph of the judgment is worth quoting:
"14. We have also perused Annexure R-5 which shows the nature and location of the roads in dispute. The said roads are the roads linked with other main roads in the City of Belgaum and other adjoining areas. The names of the roads also indicates that they are public roads and not Army roads as claimed. The mere fact that the roads pass through the Army areas or Cantonment Board would not change their nature authorising the Army Authorities to put restrictions resulting inconvenience to the general public affecting their fundamental right of the freedom of passage as enshrined in Article 19(1)(d) of the Constitution."
(emphasis supplied by me)
In the case at hand the very nature of the road is disputed
and the plaintiffs have failed to prove that the road is a ''public
road'' and the witnesses and documents produced by the plaintiffs,
themselves indicate that the road is internal road of the Army area
which is maintained by Army Engineering Services and is used to
connect different offices and facilities in the Army areas and public
can have access to the road subject to production of a pass issued by the Army. Thus case is clearly distinguishable on facts and does
not help the plaintiffs.
Both the courts below, after appreciating the oral and
documentary evidence adduced by the parties have concurrently
held that the plaintiffs have failed to prove that the disputed road
is a `public road''. There is concurrent finding of facts recorded by
both the courts below, this Court is not inclined to interfere with
the same. Mr. RP Singh, learned Sr. Counsel has failed to point out
any question of law much less substantial question of law being
involved in this appeal.
The present appeal, therefore, is liable to be dismissed and
is accordingly, dismissed.